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Defending enforcement under CASL: what is a commercial electronic message?

In 2014, the anti-spam provisions of Canada’s Anti-Spam Legislation (CASL) came into force, creating a wide array of compliance requirements for businesses. On October 7, 2014, the CRTC announced the conclusion of its first investigation and enforcement action under CASL (see our blog post on the enforcement: CRTC Concludes First Enforcement Under Canada’s New Anti-Spam Legislation). While the CRTC exercised its discretion and declined to levy fines in that investigation, an investigation alone can generate significant costs and obligations for businesses.

If your business is subject to investigation under CASL, there are several ways in which you may be able demonstrate compliance with the legislation and avoid the significant penalties associated with non-compliance. One such option is to attempt to prove that your activities do not fall within the scope of CASL.

A threshold issue is that CASL only applies to “commercial electronic messages”, or CEMs. Any business sending a CEM must do so in compliance with CASL. As a result, if your business can demonstrate that the investigated electronic messages were not in fact CEMs, it may be sufficient to exonerate your business from liability under CASL.

To qualify as a CEM, a transmission must be: (i) an “electronic message;” (ii) which is sent to an “electronic account;” and (iii) which has a “commercial purpose.” These definitions appear to be intended to capture a broad array of communication modalities, including e-mail, social media, and so on. However, there may be exceptions – for example, the situation as to whether advertisements delivered over social media services are sent to an “electronic account” appears to be unclear. Likewise, although the term “commercial purpose” appears to encompass many activities, there may be reasonable arguments as to why your particular communications do not have a “commercial purpose.”

Most modern businesses use electronic means to communicate with both existing and prospective customers. If your business is subject to investigation regarding electronic transmissions, you will have to prove that your transmissions were either compliant with CASL and the Regulations, or that your transmissions were not CEMs.

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